August 26, 2006

The Austrian girl held captive for 8 years, since the age of 10, kept a diary. Will she publish it? Imagine the rich offers she is hearing now and how strange it must be to have everyone lavishing attention on her after all these years of isolation. I wonder if, as she wrote those pages, she pictured a book that one day millions would read and if that made her feel she was not alone. The police officer who first interviewed her said she was amazed by her "intelligence, her vocabulary." Thinking of the girl's suffering, I feel heartened by the idea that she used her time -- deprived of schooling and stimulation -- to reach inside herself and discover a writer.

Did you watch Episode 1 of the new season of "Real Time with Bill Maher" last night? I hope you didn't, because it was Friday night, and it would probably be good if you had something more exciting to do, though perhaps you had to work or participate in an argument or drink yourself into a stupor or rob a restaurant like Honey Bunny and Pumpkin:

Nobody ever robs restaurants. Bars, liquor stores, gas stations... you get your head blown off sticking up one of them. Restaurants on the other hand, you catch with their pants down. They're not expecting to get robbed. Not as expectant anyway.

But who am I to pry into your Friday night? I watched the show, mostly because I saw that Markos Moulitsas and Christopher Hitchens were going to be on -- and they're two characters I follow, more or less, not to the point where I think about what they'd do on a Friday night if they weren't doing "Real Time with Bill Maher." But they were there, Hitchens looking unusually healthy. Markos, perky as ever, with those big eyes and that turn-the-world-on-with-your smile.

Bill did his typical monologue, each joke beginning with the recitation of a recent news story and then swooping down for a low punchline. One punchline, about Mark John Karr -- he's so hilarious -- made me laugh, but I can't remember it this morning.

Then he interviewed Spike Lee, who was there -- on a video screen -- to promote his documentary "When the Levees Broke." But Lee wasn't into the promotion enough to pump any energy into the segment. Maher shifted from the subject of Lee's movies to the topic of a recent Bob Herbert column -- TimeSelect link -- and quoted the line "If white people were doing to black people what black people are doing to black people, there would be rioting from coast to coast." (The column was about Juan Williams's new book "Enough." And I wish the Times would make it available now for open linking.) Spike Lee acted like he couldn't understand what Herbert was talking about. Maher got stern and said he knew what it meant, and Lee murmured his way to the finish line.

Next up was Elvis Costello, who had something to promote, I think. And it was his birthday, which is such a less interesting fact than people seem to realize. We were supposed to care that he took time from his birthday -- like it matters when you've had 52 of them and when he was only on a video screen. For some reason, Maher went into a riff about how there's never been a whiff of scandal about Elvis Costello and his name is as pure as the driven snow or some such nonsense. Elvis opted neither to agree or disagree, and I made a mental note to Google later, because I thought there was something. Yeah. This:

In March 1979, Costello capped off this productive period in his extra-artistic life by getting himself into a scrap with Stephen Stills (of Crosby, Stills, Nash and Young fame) and Bonnie Bramlett (a minor singer from the '60s) in a hotel bar in Ohio. Again motivated by an unclear principle, he did his best to offend them, finally resorting to a burst of profanity and bigotry, capped with the assertion that Ray Charles was a "blind, ignorant n*****."

There's no evidence that Costello was a racist -- he'd been active in Rock Against Racism before it was fashionable and was too smart in any event to let it show if he was -- but he was being as stupid, reckless and out of control as any of the broken-down '60s stars his energy, brains and invective were supposed to be an antidote for. In any event, Bramlett industriously publicized the exchange and Costello tried to explain and apologize. He took his lumps in a months-long transatlantic brouhaha; to this day some serious critics hold him in contempt.

In any event, Costello showed all signs of being more boring than Spike Lee so I muted the sound and finished the Friday crossword.

I unmuted when the panel came out. It was Christopher Hitchens, Senator Max Cleland, and Vali Nasr (a scholar who's written this book -- "The Shia Revival"). Maher framed a question about Iraq in terms of how finally, after all these years, even the idiots have figured out that the war in Iraq has nothing to do with terrorism. He cited a poll that showed only 1% of Brits thought it did. The other guests went along with the demonstration of how everybody knows this is true, and you, the HBO subscriber, were supposed to get the point that you're going to be an object of horrible mockery if you don't get in line. It was Hitchens's turn, and he called himself one of "the elite," because he was in that 1%, and proceeded to explain why. When the audience booed, he gave them the finger and said "F**k you." Then, when Maher tried to recentralize his point that everyone knows Iraq has nothing to do with terrorism and the audience cheered, Hitchens turned on the audience and abused them again. He abused Maher too, for leading the herd along and building himself up with their cheap support, and then he praised Maher for not letting Spike Lee wriggle out of the question he damned well understood. Hitchens knows how to do TV. [ADDED: Video!]

Maher had a comic bit set up where he had various products that you can't take on a plane anymore, like a bottle of "Jihad, Your Hair Smells Terrific" and "Behead and Shoulders." There were about ten of these things, and the funniest part of it really was how much it cracked up Senator Cleland. In case you're wondering if the format has changed, Maher also did his "New Rules" routine.

And somewhere in the middle of that, they video-screened Markos Moulitsas, who lacked any edge or ennui or signs of age or anything but the positive energy of a guy doing an interview for college admission. He believes in his blog project and it's all for the good, bringing people together, la, la, la. Maher has no material to make this interesting, so he resorts to a discussion of the word "blog." He doesn't like it. That's so 2004, Bill. Ending the interview, Maher says, "Goodbye, Carlos." Carlos. Come on. If it was Carlos, it would be The DailyLos. Ah, well, I'm sure Markos found a way to take a cloudy night and suddenly make it all seem worthwhile.

August 25, 2006

ADDED: The first comment is laugh-out-loud funny. And I'd just like to say that worse than not letting your dog walk is not letting your child walk. There are way too many children stuffed into strollers for the convenience of an adult and left with little to do but learn indolence and to grow fat.

I know some readers come to the blog and don't see the new posts -- at least not unless they hit "reload." This happens to me too when I use Firefox. I can't think of anything I can do about it other than to let you know there are new posts here every day, so if you're not seeing them, hit reload.

UPDATE: I believe I've solved the problem, based on a clue given in the comments by P. Froward.

Are we fat because we're prosperous? I've been assuming the "obesity epidemic" -- hmmm, what if it were contagious? -- is mostly a result of affluence. It's easy to get food, and we can relax a lot physically. We don't have to exercise to get our food, and we have lots of time sitting around not only not exercising but in a good position to eat the food that's always available. It's totally normal, under the circumstances, to get fat. You have to fight nature to avoid getting fat. Anyway, that's my casual observation.

At the link, economist Darius Lakdawalla debates the question with public policy professor Carol Graham. A key issue is why poor people are fatter than rich people.

Graham: While it is extremely difficult to precisely isolate the effects of norms and expectations versus those of cheap food and sedentary lifestyles, it seems very plausible that differences in the former set of factors play some role in explaining differences in incidence. Our research suggests that stigma against obesity is much lower in some racial, socioeconomic, and professional groups than others, and that accords with the higher obesity rates among those groups. It also suggests that obese people are less likely to experience mobility into higher status professions where obesity is rarer....Lakdawalla: [I]ncentives explain the variation between rich and poor at least as well as social norms. The seminal work of Michael Grossman, in 1972, argued that richer and more educated people have higher demands for health, because they stand to lose morein the way of lifetime income if they die young. Dr. Graham's examples make this point as well. For instance, she cites recent work by Jay Bhattacharya and Kate Bundorf that shows "discrimination against overweight and obese individuals is higher in higher status professions." In fact, Bhattacharya and Bundorf argue that people with health insurance face a larger wage penalty if they are obese, because their employers end up paying for their higher medical costs. They rely on incentives, not social norms, in explaining the phenomena they observe. Incentives also have several important practical advantages over social norms. Norms-based theories always involve a "chicken-and-egg" type problem. Are people fatter because it is more acceptable to be fat, or did it become more acceptable when more people got fat? Finally, and perhaps most importantly, it is often difficult to act on a theory of social norms, because policymakers can change incentives much more easily than social norms.

The Seventh Circuit has a new opinion today -- Toeller v. Wisconsin Department of Corrections (PDF) -- dealing with an issue we talked about at the time of the Alito hearings: whether the Family and Medical Leave Act is capable of abrogating sovereign immunity with respect to leave taken for self-care (as opposed to the care of others, which the Supreme Court dealt with in Hibbs). The question is the scope of Congress's power under §5 of the Fourteenth Amendment, which is limited to remedying the violation of a Fourteenth Amendment right. The self-care provisions don't relate to sex discrimination the way the family care provisions do, which is the basis for distinguishing Hibbs. This isn't about whether the FMLA is constitutional, because it's supported by the commerce power, only about whether Congress can subject the states to suits by individuals for retrospective relief. Like then-Judge Alito, the court upholds state immunity.

These cases, taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC’s brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making “remarkably intransigent statements,” or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about “polarizing declarations.” The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel’s brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court.

Thirty-four percent of those surveyed also have "no opinion" of Lautenschlager, despite her four years in office. Thirty-four percent view her as favorable, and 32 percent rate her as unfavorable. University of Wisconsin political science professor Charles Franklin believes the high negative rating is due to her drunken-driving conviction.

Lautenschlager faces a Democratic primary challenge from Dane County Executive Kathleen Falk. And despite a reasonable showing in a crowded primary for governor four years ago, two-thirds of those surveyed have no opinion on the challenger.

The situation is even worse for the Republicans. Seventy-six percent of those polled don't know Waukesha County District Attorney Paul Bucher, and 89 percent don't know former U.S. Attorney J.B. Van Hollen.

The poll was sponsored by WISC-TV and conducted from Aug. 14 though 16 by the firm Research 2000. Six hundred likely voters were selected at random and questioned over the phone.

So we haven't been paying much attention, and now along comes this juicy nugget of a footnote.

Can you do much with this politically? I think you can. People normally don't have much to go on when they think about how the attorney general's work is done. Thus, they revert to interesting but not all that relevant material: the drunk driving conviction. And now here's a hot, pithy paragraph that is precisely about how she does her work representing the people of Wisconsin, and it comes from the 7th Circuit, whose opinion of her work couldn't be more important.

Let's see how effectively Lautenschlager's opponents exploit this -- as well they should!

IN THE COMMENTS: I love this one from J:

...I think your respect for and deference to the court is exponentially higher than that of the general public. Not being a lawyer myself, my understanding of your excerpt is that she basically said the court was full of it, and they're hitting back here.

"It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making 'remarkably intransigent statements,' or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about 'polarizing declarations.'"

Actually, anyone who wants to can do those things (watch ANY episode of "The O'Reilly Factor", f'rinstance). Yes, I recognize that it might be considered inappropriate in this context, and I have no problem at all with the court hitting back, but this "it's not up to", along with the final sentence -- "We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court" -- sound almost comically arrogant to me. The effect of bringing this up might be the opposite of what you expect.

Well, perhaps the court wasn't so much slamming the attorney general as signalling deference to the Supreme Court. And not just signalling, but hamming it up big time. In any case, if the judges are arrogant, the lawyer has to account for that in writing a brief. The 7th Circuit isn't an Al Pacino movie.

Mr. Kirkland you are out of order!

You're out of order! You're out of order! The whole trial is out of order! They're out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he'd like to do it again! It's just a show! It's a show! It's "Let's Make A Deal"! "Let's Make A Deal"! Hey Frank, you wanna "Make A Deal"? I got an insane judge who likes to beat the shit out of women! Whaddya wanna gimme Frank, 3 weeks probation?

JohnR did a nice job of finding the references in the brief (which you can read here):

Here are the context and the quotes referred to in footnote 1:

First: "intransigent statements." The Appellant is going on about what you can or can't rely on from a Supreme Court decision where, as in Hibbs, there are many viewpoints expressed by the Justices in what is called a "splintered opinion." In describing what the Appellant referred to as an "analytical abyss" involving Eleventh Amendment jurisprudence between Justices Breyer, Ginsburg, Souter and Stevens on the one hand, and the rest of the Court on the other, the Appellant said, " Indeed, Justices Breyer, Ginsburg, Souter and Stevens even refused to recognize the Seminole Tribe line of decisions as a legitimate subject of discussion, much less precedental. The depth and permanency of this gulf was openly declared through the remarkably intransigent statements made in Kimel v. Florida Bd. of Regents...." (Appellant's Brief at 17....)

Second: "polarizing declarations." The Appellant is continuing to discuss the divide in the Court over Kimel, and quoted Justice O'Connor in that case saying, "...dissenters' refusal to accept the validity and natural import of ... [cite omitted]... makes it difficult to engage in meaningful debate...." The brief gives some more details, and then says (page 18), "These polarizing declarations startled many seasoned Court watchers [cites omitted].

Third: Iraq. The brief (page 19): “Given those ‘steadfast’ positions [cite omitted], was there a detectable meeting of the minds between either Justices Breyer, Ginsburg, Souter or Stevens on the one hand and Chief Justice Rehnquist and Justice O’Connor, on the other…? By analogy, if the current administration were to decide, sometime in 2006, to withdraw all American troops from Iraq, and that decision was supported by persons who were always unalterably opposed to the Iraq invasion, the administration and its opponents would hardly have reached a consensus on their rationales on how the United States should handle Iraq simply because both sides agreed with the ultimate result.”

My take, for what it is worth, is that this section of the brief should have been in some form of commentary rather than in something for a court. It is too gossipy and unlawyerly. At the same time, the writing is hardly offensive, and appears actually to be a fair description of the strength of the Justices’ opinions referred to, however inappropriate it may be to find this in a brief. I think the 7th Circuit’s footnote was an overreaction. Though I must say the Iraq thing was not the best analogy the State might have used.

I found another analogy, which I think is definitely the sort of thing that is going to make a real-world judge roll his or her eyes. In support of the assertion that the Justices in Hibbs had "two mutually exclusive analytical and philosophical cosmologies":

[N]ative American tribes and federal officials indisputably entererd into various treaties over many years, but each side unquestionably did so based on widely different cosmologies. [Citations omitted.] While treaties were the result, the divergent reasons each side entered those treaties would preclude any conclusion that there were controlling rationales that both sides actually adopted.

That's something you might expatiate about in a law school seminar, but it's not going to play with a judge who is likely to see that as embarrassingly pedantic and a waste of time. And it's weirdly political, suggesting that the writer wanted to take the time to air an irrelevant grievance. I'm thinking footnote 1 is the tip of an iceberg of ridicule that took place in chambers.

You may have noticed that the new BloggingHeads episode is called "Tornado Watch Edition." You can see me reacting to the insane Wisconsin weather. For a journalistic view of the weather we've been experiencing out here in the upper middle United States, read this.

That was yesterday. Today, I keep wanting to leave the house, and it will be looking like a nice day, then, 5 minutes later, it's all dark and vicious and the idea of leaving the house is lunacy. Then, it's a nice day again, and I start collecting myself to venture forth, and it goes all bad again.

Okay, picture this. You move to a new city, and you want to set up internet service in your apartment. The most reputable seeming service provider is outrageously expensive, and you go on-line and find a lot of alternatives, but some of them seem vaguely scammy. How would you home in on the right choice?

Entertainment Weekly has a big cover story on "Project Runway." I'm thinking you might need to subscribe to actually go to it. They try to puzzle out why the show is so great, why lots of people who weren't already interested in sewing or fashion love it so much. They come up with five reasons:

1. It never should have worked in the first place....

But the producers gave it a chance anyway on the condition it didn't end up being "people in black, talking about designing a gown with, you know, a birdcage and a clock woven into someone's Marie Antoinette wig."

2. It features the smartest, most creative challenges on TV....

3. The judges reward actual talent....

As the guy with the tattoo on his neck, Jeffrey Sebelia, puts it ''We're not eating cow's balls or having to survive in the jungle with one book of matches and a bottle of water.'' Exactly! Yeah, there's no career in "cow" ball eating. Aw, leave our darling tattoo boy alone! It's not that it's hard to tell a cow from a bull, but it's funny to act like you don't give a damn.

EW probes into the question whether the producers pick the winners and whether the choice has to do with the entertainment value of characters like Santino and Vincent. Nina Garcia assures us that she'd "mutiny" if the producers pushed her around.

4. The contestants aren't pathetic, fame-seeking narcissists.

Except the ones who are. The work is too hard and specialized to bring in lightweights.

5. Tim Gunn makes it work.

Of course, Tim Gunn. (Here's Project Rungay's tribute to him.) We like those other regulars too, though, don't we? Aren't you a Nina Garcia fan? And what about Heidi? I was asked if I liked her. I said I didn't know, but she was just such a part of the show -- like Ryan Seacrest on "American Idol" -- that I just don't like to think of the show without her. I want to hear her piercing voice to announce the next loser. It seems like it has to be.

Possible topic for the comments: personages on TV that you're not sure are all that good, but epitomize the show in some way that makes you completely attached to them.

David Savage writes about the school integration case that's pending in the Supreme Court. Parents have challenged programs that take accound of race and exclude some white children in the pursuit of racial balance, and the administration has just filed its briefs siding with the parents:

[Solicitor General Paul] Clement urged the high court to resolve a lingering dispute over the meaning of the court's landmark decision in Brown vs. Board of Education. That 1954 ruling struck down racial segregation laws that prevailed in the South and parts of the Midwest and declared that segregated schools were "inherently unequal."...

"The promise of this court's landmark Brown (decision) was to 'effectuate a transition to a racially nondiscriminatory school system,' " he wrote. "The United States remains deeply committed to that objective. But once the effects of past de jure (legal) segregation have been remedied, the path forward does not involve new instances of de jure discrimination."

His argument is likely to get a favorable hearing from Chief Justice John Roberts and his conservative colleagues.

"It's a sordid business, this divvying us up by race," Roberts commented in June when the court ruled on a voting rights dispute from Texas. The court majority said Texas had violated the Voting Rights Act by shifting Latino voters out of a congressional district where they were nearing a majority, but Roberts expressed his dismay with the law's focus on the race and ethnicity of the voters.

The voting rights case is different -- importantly so, I think -- because it saw federal law mandating what Roberts called a "sordid business" and overriding a choice made at the state level. In the racial balancing case, local government has chosen that "sordid business" for itself, and the question is whether federal law should override it. Other conservative values -- federalism and judicial restraint -- therefore come into play. It's not just conservative versus liberal here. There is a complexity to the conservative side of the argument that ought to be recognized.

August 24, 2006

The NYT has an editorial about the controversy that has boiled up connecting Judge Anna Diggs Taylor to the ACLU, the party she summarily handed a victory to in ACLU v. NSA.

[I]t would have been prudent for her to disclose any activity that might conceivably raise questions about her ability to be impartial. Regrettably, it was left to a conservative group, Judicial Watch, to point out her role as a trustee to a foundation that had given grants to a branch of the American Civil Liberties Union, a plaintiff in the case....

Judge Taylor’s role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is still disquieting — and, even worse, it is not all that unusual for a member of the judiciary. The most important lesson here may be the wisdom of re-examining the sort of outside activities that are appropriate for sitting federal judges.

I don't understand why judges don't steer clear of anything that can be used against them like this. Well, to dredge up yesterday's paper -- the one with my op-ed in it -- I don't understand why judges don't swaddle their opinions -- whether result-oriented or not -- in very professional, neutral-sounding verbiage. Why make it easier for your critics?

Here's news of an advance in stem cell research which threatens to destroy the political issue elaborately built on the old technology that required the destruction of an embryo. How inconvenient for politicians who face the fall election season who've made this their issue. I wonder if they can let it go, or if they'll find a way to say the problem remains.

On one side, you have social conservatives who are trying to point up their dedication to the pro-life set of values. On the other side, you have those who oppose pro-lifers and have -- quite sensibly -- seen a big opportunity to amass public support by emphasizing the very widespread interest in finding cures for various diseases.

Consider the Wisconsin governor's race between the Republican challenger Mark Green and Governor Jim Doyle. Doyle must be upset to see this new research reported now. Look at this article from a month ago:

If Gov. Jim Doyle and Democrats have their way, the biggest issue in the campaign against Republican Mark Green will be smaller than the period at the end of this sentence.

With the hope of attracting undecided voters and driving a wedge into Green's support, Doyle has launched a relentless effort to paint Green as an opponent of stem cell research, which is seen as holding the promise of treatments for a host of debilitating diseases....

In general, analysts see little risk for Doyle in pushing the issue, and potentially a high reward. Doyle already is unlikely to win the votes of those who oppose abortion - the same voters who raise the gravest concerns about embryonic stem cell research....

The Doyle campaign has created a steering committee of nationally known stem cell advocates, hired a full-time stem cell coordinator (an unheard of position for a campaign) and worked to build a network of people for whom the issue hits home.

Will Doyle let go of the issue now? Look how organized he is around the issue and how niftily it works for him. (It's certainly been working on me.) And he's got a special team of advisors on this issue. Don't you think they're brainstorming right now about how to keep the controversy going?

If they try to explain away the new research, they need to be careful not to ruin what is most appealing about their position: a strong support for science. If they overreach now, their position will look a lot more like political posturing than it did before, and, as that month-old article shows, it already was starting to look that way.

August 23, 2006

Did you agree with the outcome tonight on "Project Runway"? I was going to do a very detailed post on tonight's show, like last week, but then my TiVo "season pass" failed to perceive that this was a "first run," and I only noticed about 20 minutes into the show when I sat down to watch. Then, during the critique part in the end, we got a tornado warning here in Madison, Wisconsin, which not only introduced a warning text crawl across the top of the screen, but also knocked out the audio. So I'll have to catch the full show later.

Anyway, it was fun to jump in and have to get the hang of what was happening -- the models were mothers or sisters of the designers, and nobody had his own mother/sister so there was a conflict of interest where each model had a motive to sandbag her designer. Angela's mom was not happy with Jeffrey -- the guy with a tattoo on his neck -- and Jeffrey was not disposed to put up with it. Angela's mom got all weepy and Angela got super-protective, and it was a bit of a scam. But Jeffrey stood his jerky ground and made what he thought was right, which was -- quite independently of Angela's mom's opinion -- crap. Very amusing!

But then in the end, it wasn't just Jeffrey with a problem. It was Robert, who had opted for the standard, desperate strategy for draping a fat woman: a huge poncho-like nonjacket. In red, the color she wanted. And the biggest problem is that Robert has been boring before. His boringness was the culmination of weeks of boredom. Of course, Jeffrey's jerkiness was nothing new, and this week was a real spike in his trend. But which tendency would you cut -- the boring or the jerky? I think they made the right choice.

But you might ask, did I make the right choice hanging around upstairs during a tornado warning, when I could have been holing up down in the basement?

UPDATE, on seeing the whole show: Well, I see they drew lots to choose the models (with last week's winner, Michael, getting the first pick). It was a little awful watching them pick, because it was so obvious that they were picking in order of weight. Michael immediately snagged the thinnest (and youngest) one. After each selection, it was more and more obvious that everyone was saying to the unchosen ones "You're fat!" Then those women had to work with the designer they had to know would have shunned them if they'd gotten an earlier choice.

But no one forced these women to go on the show. They had to know -- and I suspect the producers elaborately explained it to them -- that they would be seen as a special challenge and everyone would be inspecting them and talking about their size. But they might very well have reasoned it through and seen how they could help their son/brother. Since you couldn't pick your own family member, a difficult model would hurt a competitor the model had a interest in defeating.

Angela's mom seemed to know that. In the original consultation with Jeffrey -- who only had her as a model because he got last choice (no choice) -- Angela's mom told him two colors she liked. Shopping, he decided he needed a better color match and went with light blue, which upset her rather bizarrely. He dealt with it badly, and both the mom and Angela exploited his emotional weakness by acting all emotional, in a much warmer way, which made him look monstrous... just by chance. I love when Angela and her mom are behind the screen and Angela is all you have a right to say you're not happy.

Meanwhile, all the other designers displayed a nice bond with their models -- though Robert's distaste for his large-sized model showed when she wasn't around. So Jeffrey, you were outplayed. And you should see how much you were helped by your own mom, who -- by being nicely normal -- humanized you.

I must have listened to that Carole King album -- "Tapestry" -- a thousand times with my college friends. I seem to remember playing Hearts -- the card game -- and ignoring the moon landing.

Driving out Mineral Point Road as the radio show began, I loved the song he played by Sister Rosetta Tharpe, who, he said, must have influenced a lot of guys to play electric guitar. He was effusing about the way she looked, and told us we could look on YouTube and find a clip of her "that'll blow your mind." Okay, Bob, I found the clip:

I wanted to write down the name Sister Rosetta Tharpe, so I wouldn't forget it, and I considered trying to write and drive at the same time. I got out the Uniball and, for paper, opened to a blankish page of that Entertainment Weekly in my handbag, but then I thought better of it and just started hoping for a red light. But the red light wasn't long enough, so I pulled into a parking lot and took some notes. I wanted to remember to tell you these two quotes he recited:

"Go up close to your friend, but do not go over to him! We should also respect the enemy in our friend." Friedrich Nietzsche

Driving again, I noticed the clouds looked really strange, and I had to stop again for some photographs:

I turned onto Elderberry Road to get these shots, and it took me on a country drive I hadn't bumbled into before. It curved all around and by the time it ended, it was called Schewe Road.

Great show today, Bob. The best one yet. Next week, the theme is "Radio." The only song that it seems you absolutely must play is "You Turn Me On, I'm a Radio" ... "If you're driving into town/With a dark cloud above you/Dial in the number/Who's bound to love you."

What do you think of someone like this? Do you think he's just so smart that it's pointless to expect him to have ordinary human motivations and thus uninteresting to understand why he's doing this? Do you admire him for this, and if you do, why? It has to have meaning to be admirable, doesn't it? Or do you find it beautifully poignant, like weeding a desert?

The prospect of being awarded a Fields Medal had forced him to make a complete break with his profession. “As long as I was not conspicuous, I had a choice,” Perelman explained. “Either to make some ugly thing” — a fuss about the math community’s lack of integrity—“ or, if I didn’t do this kind of thing, to be treated as a pet. Now, when I become a very conspicuous person, I cannot stay a pet and say nothing. That is why I had to quit.” We asked Perelman whether, by refusing the Fields and withdrawing from his profession, he was eliminating any possibility of influencing the discipline. “I am not a politician!” he replied, angrily. Perelman would not say whether his objection to awards extended to the Clay Institute’s million-dollar prize. “I’m not going to decide whether to accept the prize until it is offered,” he said.

Mikhail Gromov, the Russian geometer, said that he understood Perelman’s logic: “To do great work, you have to have a pure mind. You can think only about the mathematics. Everything else is human weakness. Accepting prizes is showing weakness.” Others might view Perelman’s refusal to accept a Fields as arrogant, Gromov said, but his principles are admirable. “The ideal scientist does science and cares about nothing else,” he said. “He wants to live this ideal. Now, I don’t think he really lives on this ideal plane. But he wants to.”

I'm not a good weeder myself. If the spirit moves me, I'll pull a weed or two, but I'm more likely to reinterpret the weeds as "ground cover" or "native plants." Nevertheless, I feel quite touched by these Japanese weeders, weeding the ancient sand dunes of Tottori:

From the Sahara to the Gobi Desert, governments elsewhere are planting trees in a struggle to check expanding deserts. But officials here are focusing their efforts on trying to preserve Tottori’s landmark tourist spot, grain by grain.

So early Saturday, on a morning already humid at 6 a.m., some 40 volunteers were moving up a gently sloping hill on their hands and knees, filling plastic bags with grass they had uprooted with their hands....

“There’s the fear that the balance of the sand dunes may have collapsed,” said Toshiaki Hotta, 50, who oversees this site for the prefectural government. “The sand dunes are tens of thousands of years old, so we human beings can’t have our own way. If we stop weeding, it will become grassland in no time.”

Especially beautiful is the way the dunes, once seen as a wasteland, have gained stature and meaning through literature:

It was in 1923 when Takeo Arishima, a novelist with a strong following among women, came to lecture in Tottori and visited the dunes. Mr. Nishio said Arishima was the first to refer to this area as sand dunes, in a poem in which he wrote about the deep misery he felt while standing in the middle of the dunes....

Kobo Abe is said to have visited a desertification center at Tottori University to conduct research for “The Woman in the Dunes,” a story about a man who falls into a sand pit where a strange woman dwells alone.

The comments on this post could go many places. You might want to discuss you own gardening attitudes or the film "The Woman in the Dunes." Let me also suggest thinking of other places that became beautiful because of the way they figured into a work of literature. And is there anyplace that was considered beautiful but came to be seen as ugly because of literature?

August 22, 2006

ADDED: I like the illustration -- by David Suter (not David Souter) -- with the gavel-as-microphone image.

UPDATE: I can see that a lot of people are missing the point of the op-ed... But I don't want to get out my sledgehammer, and I'm bored with telling people to calm down and reread it.

ANOTHER UPDATE: Lot's of commentary here and elsewhere to keep up with, like this long thread at Volokh. Some other blogs are attacking me in a way that's too vicious to link to and engage with, so you'll have to just imagine what I'd say if chose to respond. I've got to expect to be attacked over this, even though it's mostly a basic civics lesson! Imagine what people would say if I'd actually said the government's interpretation of the Constitution and the statutes is correct (which I've never done, here or elsewhere).

Sound all over them... you know, I hate that too. "There's no definition of nothing, no vocal, no nothing, just like ... static." So do you think Bob Dylan's just a messed up old man -- he's 65 -- or does he know what he's talking about? I'm so used to the old time records he plays on his radio show, that I'm inclined to believe him. It reminds me of the way R. Crumb talks about his old records in the movie "Crumb." I'll have to dig out the quote and post it later.

Earlier this month, Grass, 78, made the surprising confession that he served in the Waffen-SS, the combat arm of the Nazis' fanatical organization. His new memoir, "Peeling the Onion," was then released and appeared last week in German bookstores....

"I would like to keep the right to say that I have understood this painful lesson that life taught me when I was a young man. My books and my political activity are the proof," Grass wrote.

Do you even know whether it does? Do you want to know? Do you feel you have a right to know? Well, now you do have that right, that is, you will beginning with 2011 model cars.

How much would your driving change if you knew you had one of these things in your car? Under the new regulations, the devices will "collect at least 15 types of data, including vehicle speed, whether the driver was wearing a seat belt, and whether the driver hit the accelerator or the brake before the crash." But maybe you already have one of these things in your car. It would seem to me that the main value of the device is to change your behavior in all the many drives you take that don't end in a crash.

Interestingly, the Alliance of Automobile Manufacturers supported the new rules. And the ACLU has a problem:

Jay Stanley, a privacy expert with the American Civil Liberties Union, said the government "punted on the most important privacy issues," such as whether the data is accessible to third parties without a judicial order or an owner's consent and whether the devices can be turned on or off.

A middle school social studies teacher burned a small American flag in each of two classes in what he says was an effort to motivate them for a writing assignment about free speech. Now that it's hit the press, they're looking into criminal charges -- because of the open flame, right?

"The issue is the possible endangerment of children by having an open flame in the classroom," School District representative Lauren Roberts said. "That is definitely a safety issue. And then also the issue of the actual burning of a flag and the symbolism of that is highly offensive to many people. And could there have been a better way to have demonstrated those concepts to those students without going to that extreme?"

I'd say you've already screwed up your effort to prosecute him for the fire violation. The man, Dan Holden, has been teaching since 1979. He was trying to get the students excited about free speech. He could have just said something inflammatory, like "I hate the American flag and everything it represents." But real fire does excite kids, and it probably did spice up a subject they were inclined to think of as dull. But, I think, the retribution against their teacher is an even more attention-getting lesson.

How should the school deal with this? Use it for more education. Stage a debate about free speech, flag burning, and what should happen to a teacher who burns a flag in class to get students excited about free speech issues. And don't punish the teacher.

Talk Left notes a news report that says 12% of those who receive the death penalty choose not to appeal and suggests this is rational. Interesting. Back when Gary Gilmore refused to appeal his death sentence, people found it very disturbing that a man wouldn't fight to stay alive. There was an effort to bring an appeal for him, in spite of his refusal, with his mother as the party representing him, as if his refusal to appeal was a sign that he needed someone to stand in for him. The Supreme Court said she didn't have standing.

I wrote a law review article back in 1991 about Gilmore and a later case Whitmore, in which another person given the death sentence tried (unsuccessfully) to represent a murderer who declined to appeal. (The article is not linkable, but here's the cite: Althouse, Standing, in Fluffy Slippers, 77 Va. L. Rev. 1177 (1991).)

Here's a footnote from that article, on this question of whether it's sane to accept the death penalty:

This preference for death over prison is scarcely bizarre. Gilmore's decision, as reported in The Executioner's Song, seemed entirely sane and rational, given his long experience of the reality of prison life. Popular songs have long portrayed a life sentence as worse than execution. See G. Brooks, "Send Me to the 'Lectric Chair" (Mills Music, Inc. 1927) ("Now I don't want no bondsman here agoin' on my bail,/And I don't wanna spend them nine and ninety years in jail;/So judge, judge, good kind judge,/Send me to the 'lectric chair."); M. Haggard & J. Sanders, "Life in Prison" ("I begged they'd sentence me to die/ But they wanted me to live and I know why -- My life will be a burden every day/If I could die, my pain might go away."). And Patrick Henry said, "give me liberty or give me death!" to the 2d Revolutionary Convention in Virginia, March 23, 1775 (cited in 14 Encyclopedia Americana 108 (1986)), a sentiment the state of New Hampshire compels its drivers to bear on their license plates. See Wooley v. Maynard, 430 U.S. 705 (1977) (Court straining the doctrine of Younger v. Harris, 401 U.S. 37 (1971), to bar prosecution of the nonconformist couple who took offense at the slogan "Live Free or Die" and covered it up with tape); see also Cruzan v. Director, Mo. Dep't of Health, 110 S.Ct. 2841, 2885 (1990) (Stevens, J., dissenting) (citing Patrick Henry's quote in recognizing a "right to die"). For futher discussion of the Cruzan case, see infra note 57.

The most widely venerated refusal to fight the death penalty was that of Jesus: "Pilate questioned him again: 'Have you nothing to say in your defense? You see how many charges they are bringing against you.' But, to Pilate's astonishment, Jesus made no further reply." Mark 15:4-5. Like Gilmore, Jesus withdrew from the process the law afforded him and accepted execution. Why has Jesus' choice inspired reverence and Gilmore's scorn? Gilmore turned his back on a legal system we still support and view as a source of justice; Jesus turned his back on a legal process we consider corrupt and evil. Perhaps it is not that we despise the acceptance of death, but that we judge an expression of contempt of the legal system in accordance with our opinion of that system.

Socrates is also famous for accepting the death penalty. See Plato, Crito, reprinted in Plato, The Last Days of Socrates 53-70 (H. Tredennick trans. 1954). Unlike Gilmore and Jesus, however, Socrates did not refuse any available step in the legal process. He refused the extralegal step of escape and argued against violating the law in a legal system that had wronged him. Thus, he expressed the very antithesis of contempt for the legal system.

The most obvious explanation for the scorn directed at Gilmore is simply that in judging him, we cannot separate his preference for death from the fact that he was a murderer, just as we cannot separate our judgment of Jesus and Socrates from our knowledge that they committed no offense we can remotely understand as punishable by death. Whereas Jesus and Socrates were great men we would never have condemned, Gilmore was a social excrescence whose demise relieves us (judgment takes place in context, not in the abstract). Or perhaps, at least for those who support the death penalty, scorn for Gilmore's choice expresses frustration that he somehow destroyed the state's power to punish. Someone who prefers death will only be killed by execution -- not punished. Gilmore is incomparable with Jesus and Socrates for any number of reasons, but among those reasons is that only Gilmore deprived us of whatever satisfaction attaches to social vengeance.

It was hard to go through with writing a law review footnote like that, and this was an article full of unusual touches. The nice thing is that if you do write something strange and a law journal accepts it, they're not going to try to edit you into the form of the standard law review article. I wrote about that phenomenon in a little article called "Who's to Blame for Law Reviews?" And I maintain a very high opinion of the Virginia Law Review editors who accepted the "Fluffy Slippers" article -- which is full of evidence that I was dying to blog -- and who gave it such a sympathetic edit.

But back to the death penalty, what do you think of those who don't appeal? I assume these are all people who have only the hope of life in prison and who do not have a chance of going free, that is who would only be challenging the sentence not the finding that they were guilty of the crime.

Here in Wisconsin, we don't have the death penalty and haven't for over a century, but we'll be voting on the death penalty this fall. A new poll shows 54% of likely voters favor it, over 39% opposed. Check out the new "No Death Penalty" website, which is working against the Wisconsin referendum.

August 21, 2006

Says Adam, commenting on the slack performance of "Snakes on a Plane" at the box office this past weekend. And that stirred up an ancient memory of a song called "Rats in My Room." Anyone else remember that? Why am I not finding the lyrics on the web? I've never tried to look up song lyrics and not found them. It's something like: Rats in my room/I am bothered by some rats in my room/By some creepy little rats in my room/I can't stand rats in my room. Then there are a lot of verses, each for a different animal, e.g., "fly in my eye."

As I understand it, DOJ's response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first." After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

So imagine you're a Sixth Circuit judge, and imagine (to make the case interesting) that you agree with Judge Taylor that the state secrets privilege should not block the suit. What then? It seems to me that it's way too early to just resolve all of the legal issues in the case without briefing; presumably you would want to send it back to the district court for discovery and fact-finding, or for resolution of the many difficult procedural issues in the case.

Well, that might explain the weird repetition of the strange word "undisputedly" throughout the opinion. I wonder why Judge Taylor didn't lay it on the line that this is what she is doing. She could have said: The plaintiffs have moved for summary judgment and they have, as required, demonstrated the absence of a genuine issue of material fact.

Moreover, if we go to the DOJ link that Kerr provides, we see that the government not only moved for summary judgment (and, alternatively, for dismissal) based on the state secrets privilege, but it also moved for dismissal or summary judgment based on standing. I note that the first part of the judge's opinion, dealing with the state secrets doctrine and standing -- or at least the first prong of the three-part standing doctrine -- is decently detailed and judicial in tone. Perhaps late in the game, the judge got the idea of rushing to the finish line and deciding all the substantive issues in the case.

If we go to page 4 of the linked DOJ document, we see the unclassified memorandum supporting the state secrets motion, and it also refers to a motion to stay consideration of the plaintiffs' motion for summary judgment. Go to page 57 of the linked document for the argument for staying the plaintiffs' motion: the claim of the state secrets privilege necessarily precedes any motion that requires consideration of the evidence and cites cases justifying the use of discretion to stay the plaintiffs' motion for this reason.

The word "stay" does not appear in Judge Taylor's decision!

Surely, it is absurd to blame the government for failing to raise a factual issue when it was arguing for that the facts were privileged! And to do that without even discussing the fact that you are doing that, without mentioning the motion to stay is truly outrageous.

If I'm missing something, please let me know.

UPDATE: I see from reading the comments to Orin's post that the judge did deny the motion for a stay on an earlier occasion, on May 31st. You can see the order here. There's no discussion of the reasoning for this or of any of the cases the defendants cited in support of the motion for the stay. Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.

I ask. Comparative vlogging backgrounds. That's the main subject here. Also covered: the UPS guy and his brown shorts set, Post Impressionism, National Review and my relationship to the rest of lawprofessordom.

I think it's all about the deadlines, and the reason blog writing flows so easily is that I've come to feel that once you start a post, you've essentially already taken on the deadline. Opening a new "compose" window represents a commitment to hit publish quite soon. It is a mellow, fuzzy deadline, so I feel especially good about it, but it works like a deadline just the same.

I can't get used to how different it feels to write for the blog and to do any other sort of writing. You'd think writing so much here would build up my capacity to tap out the words at will for any purpose. But it's not so. I try telling myself to pretend it's just a blog post. But it's always different.

Perhaps it has something to do with deadlines. With blogging, there's just another time stamp, and you never know when the next one will appear... though you do have a very strong feeling that something needs to go up in the morning.... like this one, which I'm putting here just before I withdraw into my deadline-meeting cocoon.

Meanwhile, check out this heading, which startled me this morning. Fortunately, I'm holed up out here in Madison, Wisconsin, so no Cambridge posse can reach me. I am picturing Harvardians cursing me, but I can't hear them out here. Yes, of course, they can blog about me... Well, let them try. I need more material today.

Anyway, as I've said, I've got to curl up inside that deadline-meeting cocoon, so let me declare this post a coffeehouse -- an Alt-coffee-house -- and let all you thirsty readers talk about whatever you like. You can even confess to crimes in the hope that the authorities will come and serve you paté and prawns.

It's a new podcast. Only 27 minutes.Topics: The opinion in ACLU v. NSA, discussed, criticized. The way blogging is affecting commentary on legal cases. The mutiny of airline passengers. George Allen's "Macaca" gaffe. Watching or not watching television. ("Does it take patience to do something boring?") "Project Runway." The new -- politically motivated -- fashions for fall.

Stream it right through your computer here. But the glossiest podcast fans subscribe on iTunes:

Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor's opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there's so much reason to criticize the administration.

My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.

Yeah, please tuck your criticisms away where no one will see them.

But It's [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English? Are you saying the law professors who dared to engage with the opinion and scrutinize it on their blogs were mainly showing off and trying to further our careers? Are you saying that ordinary people who don't read law reviews and who are trying to understand current events shouldn't have the benefit of law professors helping them understand an important new case, that we're distracting them from their proper job of despising the President? You want people to concentrate on the judge's conclusion and not to question the judge's reasoning and analysis? To do that is to bow to authority. If that's what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he's doing. Why shouldn't people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?

IN THE COMMENTS: Gahrie says: "Tribe's response comes from the same well of thought that Rather's response to the TANG memo forgeries did." Oh, yeah. Fake but accurate. She reached the conclusion we know is right, so...

MORE IN THE COMMENTS: David Walser writes:

I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He'd like the public to quit looking at the man behind the curtain. That can't happen if the rest of the professorate keep calling attention to The Great Judicial Oz' failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That's a greater risk to all Tribe holds dear than the matters that were at issue in this case.

I've got a little table -- I've written about it before -- that seems to have a magical capacity to concentrate my mind. It's all the way in the back of a Madison café, not a normal place for me to sit. I like the front, where people move around and talk and give you that real feeling of being out in the world, which seems to be the point of not working at home. But there's something about this table by the window, where the view when you look straight up is a bulletin board: "Stop Israeli Terror Now!" "Help Defeat Bush and the GOP," "Demand Zero Emission Cars," "Demonstrate Against Hate," "Womyn's Coop," "Lay Low and Glow," "The Power to Heal Is In Your Hands," "Depression and Brain Changes Research Study." Something keeps me focused. I sat here once and wrote an op-ed on a 3-hour deadline. Last time I was here, I ran into a colleague who had a writing project spread out on a table. A novel, he revealed. Are all the lawprofs writing novels these days? A week ago, I checked out lawprof Jed Rubenfeld's new novel and noted how he said his agent steered him away from a law book: People want to read novels. But I'm not here to start a novel, even though once, a long time ago, I wrote a novel, I was kind of inspired by an essay today about those summer camps for writers, and I even had a dream last night that I was writing a novel. What was the novel about? I can't remember! And I'm at my little magic table here now because I've got another little law essay to do.

But do they deserve to be called racist? There were factors beyond the Middle Eastern appearance of the men who spooked them, but they are factors -- like scruffiness -- that we ignore all the time. I think that people may be turning down their internal censor and taking action where before they would simply calm themselves.

Time has a huge article on Hillary Clinton and the hot news that she wants to be President. I thought this paragraph was interesting:

[S]he is not as insulated as she once was on the left, which is far angrier than it used to be. Some liberals say they will not forgive her support for the Iraq invasion or, even worse, her refusal to recant that vote. When Hillary addressed the liberal group Campaign for America's Future in June, she was booed. And everyone there knew whom Kerry meant when he said, at the same conference, "It's not enough to argue with the logistics or to argue about the details. It is essential to acknowledge that the war itself was a mistake." Hillary of late has made a point of stepping up her criticism of the Bush Administration, to the point of calling for the ouster of Defense Secretary Donald Rumsfeld. And in a neat bit of Clintonian triangulation, she distanced herself from pro-war Senator Joe Lieberman even as her husband campaigned for him. But the hard truth is, she doesn't have much wiggle room. National security is the toughest test for a Democrat, particularly for a woman and especially for a woman so associated with feminine causes like child care and education. Her chief strategist has a grim assessment of what Hillary is up against on that front. The country may be ready for a woman President, Bill has privately told friends, but the first one to make it is more likely to be a Republican in the Margaret Thatcher mold.

Or one that Hillary could have been if she hadn't tried to shake off the hawkish image she'd been working on most of the time she's been in the Senate.

And check out how much of the article is about Bill Clinton. His name is mentioned more than 25 times! When Hillary runs, we'll be endlessly talking about Bill, comparing her to Bill, wondering what Bill thinks of her, how much Bill would sort of be President again, etc.